Recovery of debts

The Law Office of Ali Barakat in Baghdad follows the recovery of a sum that is due once a judgment or an enforceable instrument exists: lodging the instrument with an Enforcement Directorate (مديرية التنفيذ), the enforcement notice, performance if it is given voluntarily, and otherwise compulsory enforcement and attachment. This field follows a judgment in a civil claim, or the existence of one of the enforceable instruments listed in the Law. The text sets the bounds of the route.

What is the legal basis?

The source is Enforcement Law No. 45 of 1980, as amended, published in the Official Gazette, issue 2762 of 17/3/1980. Article 3 provides that the Law applies to judgments and enforceable instruments, and to foreign judgments that are capable of enforcement in Iraq in accordance with the Law on the Enforcement of Foreign Judgments, having regard to the international agreements in force in Iraq. Article 9 provides that judgments given by the courts of Iraq are enforced in accordance with this Law.

Article 4 forms in Baghdad a department named the Enforcement Department (دائرة التنفيذ), attached to the Ministry of Justice, which follows the work of the enforcement directorates. Article 6 provides that an Enforcement Directorate is formed in every place that has a Court of First Instance (محكمة البداءة). The directorates in governorate centres are attached to the Enforcement Department. Each directorate is directed by an enforcement officer (منفذ عدل). The first judge of the Court of First Instance is treated as the enforcement officer if the directorate has no officer of its own, and the Minister of Justice may assign any other judge to perform the officer’s work. How the directorates are distributed in Baghdad is the subject of enforcement directorates in Baghdad.

The enforcement officer is not styled a “judge of enforcement”. In the cases provided for in Article 6, direction of a directorate may be entrusted to a judge, who retains that capacity. The Enforcement Department (the central formation at the Ministry of Justice) is distinct from an Enforcement Directorate (the local directorate).

What is enforced, and how does a file begin?

The right in an enforceable instrument must be ascertained, due and not contingent on a condition, and must not conflict with public order or morals, under Article 13. The instruments capable of enforcement are listed in Article 14. They include negotiable commercial papers; instruments containing an acknowledgment of a debt; instruments establishing a real right that have taken the form the law requires; instruments establishing a personal right; a suretyship given before the enforcement officer; a document of the Real Estate Registration Department for what remains due to the mortgagee from the mortgagor after the mortgaged property is sold; and deeds, decisions and orders to which the law gives the force of enforcement. Each class has further conditions in the later paragraphs of Article 14, including those that concern a surety or an endorser, and the condition that the debtor under an ordinary instrument must not be outside Iraq, of unknown residence, or deceased during the period of the enforcement notice.

The judgment or instrument is presented to the enforcement officer, who refers it for the fee to be collected and for registration, and then decides to accept or refuse enforcement, under Article 15. If the debtor does not perform the judgment or instrument voluntarily, the Directorate proceeds to compulsory enforcement, under Article 22. The creditor may apply to any Enforcement Directorate. If steps are required outside its area, it delegates the directorate of that area, under Article 24.

The Directorate must serve the debtor with an enforcement notice, under Article 25. An objection may be made to a negotiable commercial paper, an instrument containing an acknowledgment of a debt, and an instrument establishing a personal right, as listed in Article 14. No enforcement act may be carried out after nine o’clock at night and until six o’clock in the morning, or on official holidays, except by a decision of the enforcement officer, under Article 23.

If the person to be served has no permanent, temporary or chosen domicile, and the enforcement officer has established that, service is effected by publication under Article 27. The day following publication is treated as the date of service, and the debtor is required to attend within fifteen days. If that period expires and the debtor does not attend, the debtor is treated as having refused to perform, and compulsory enforcement begins.

Attachment and compulsory enforcement

Attachment of movables, of what the debtor has in the hands of others, of wages and of accounts is the subject of attaching movables, wages and accounts. For identification, not as a full account, Article 82 should be noted: the salary and allowances of a State employee, a member of the military or the police, a worker, a person who receives a retirement salary, and anyone who receives a salary or wages from the State, may be attached up to one-fifth of what that person receives as salary and allowances, including cost-of-living allowances. If the debt is not owed to the State or to a body covered by that paragraph of the Law, attachment under the first paragraph is permitted only if the debt is established by a final court judgment, or by an official marriage deed in respect of a dowry, and the debtor’s agreement to the contrary is not relied on. Subject to that, current court-ordered maintenance, not arrears, may be attached whatever its amount, and is collected from the total of salary, allowances, incentives and bonuses and from any financial source coming from the State, and is treated as a privileged debt.

On attachment of immovable property, the debtor is notified and required to pay the debt and its accessories within ten days from the day following service, failing which the attached property is sold, under Article 87. The sale of attached immovable property follows its own provisions in the Execution Law.

What does the office follow?

From its premises in Baghdad, the office explains the nature of the enforceable instrument, an application to an Enforcement Directorate, the enforcement notice, an objection to certain instruments within the limits of Article 25, attachment within the limits set out, and what follows the enforcement of a foreign judgment after an enforcement decision under Law No. 30 of 1928.

Legal basis and sources

1. Enforcement Law No. 45 of 1980, as amended (Official Gazette, issue 2762 of 17/3/1980)
2. Civil Procedure Law No. 83 of 1969
3. Civil Code No. 40 of 1951

Frequently asked questions

Topics in this area

• 01Enforcement directorates in Baghdad under the Enforcement LawHow enforcement directorates are formed in Baghdad under Law 45/1980: a directorate where a Court of First Instance sits, and filing at any of them.
• 02Attaching movables, wages and accounts under the Enforcement LawAttaching a debtor’s movables, wages and funds held by a third party, including an account, under Law 45/1980: limits, exemptions and periods.

Always check the text in force and its amendments in the official source.

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